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Go Back 4.1 Statutory Power and the Takings  Question
Chapter 5: Pro's and Con's of Rolling Easements Go Forward

4.2 Interests in Land

4.2.1 Constitutional Takings Question

One of the primary reasons for obtaining a recorded rolling easement is that the legal uncertainty surrounding a possible regulatory takings claim can be avoided. If the landowner sells or donates a rolling easement, then the takings question is entirely avoided. Sometimes localities obtain easements as a condition for a permit, a process known as an “exaction.”Under existing holdings, an exaction of a rolling easement in return for a permit to develop vacant land is not a taking, provided that (a) the rolling easement mitigates a type of harm otherwise caused by the development,[376] and (b) this mitigation is roughly proportional to the harm expected from the development.[377] One paper has argued that exacting a rolling easement that prohibits shore protection meets this test because such a permit condition merely ensures a natural transformation that would occur if the development did not take place,[378] but an exaction of another type of rolling easement could be a taking under other circumstances.[379] Whatever the merits of a takings claim may be, they are litigated at the time of the exaction,[380] and hence provide more legal certainty than a regulation, which need not be litigated until the property is threatened decades later.

4.2.2 Does State Property Law Allow Creation of the Rolling Easement Needed?

Just as government agencies must have legislative authority for their regulations to have the force of law, a property interest much be legally recognized for a court to enforce it. In this section we focus on conservation easements, future interests in land, ambulatory (moveable) boundaries, and rolling affirmative easements. Conservation Easements

Traditionally, the common law did not recognize conservation easements as property. But statutes enacted during the 20th century now authorize conservation easements;[381] and land trusts can readily design shoreline migration conservation easements to fulfill the requirements of those statutes. Some issues will arise, however, if a land trust and the landowner want to amend an existing conservation easement that does not roll so that it becomes a rolling conservation easement.

Land trusts have developed a comprehensive framework for evaluating possible amendments to conservation easements.[382] Often amendments occur because a landowner wants to do something that is prohibited by a conservation easement, but the proposed activity either has a negligible adverse impact on achieving the conservation purpose of the easement, or the owner is willing to amend the easement to prohibit an activity that would have a more severe impact on the conservation value. Land trusts are generally advised to ensure that amendments:

To ensure compliance with applicable law, The Nature Conservancy seeks approval from a state's Attorney General before amending an easement (which can delay the process considerably).[384]

Converting an existing conservation easement into a rolling conservation easement would generally satisfy all those criteria. Adding the restrictions associated with preventing shore protection would either increase the conservation values of the easement by (for example) ensuring that farmlands become wetland, or have no impact (if the landowner was not going to hold back the sea anyway). The public interest is clearly served, and no one is enriched. The Nature Conservancy does not seek approval of the Attorney General for amendments that merely add restrictions.[385]

If the sole purpose of a conservation easement was to maintain the area of farmland in a given region, however, prohibiting shore protection might tend to undermine the intent. The parcel may remain farmland longer without the restriction (though there is no guarantee that the farm would be protected  from the rising sea even without the

rolling easement). Thus the amendment could be viewed as having positive and negative impacts on conservation. If the resulting moderate legal risk[386] was unacceptable, creating a new shoreline migration easement could accomplish the same result; but the holder of the conservation easement might be reluctant to accept the shoreline migration easement because of its duty to uphold existing easements. (Finding a second land trust to accept the new easement might be difficult). Nevertheless, in a state where the model easement discourages shore protection, the clear public policy in favor of allowing wetlands to migrate inland will make it difficult to challenge a rolling conservation easement created by amendment. One can reasonably assume that the original purpose of this conservation easement was to prevent development and thereby ensure that the land will be farmed for as long as the land exists, not to encourage the owner to eventually protect the land with a dike. Defeasible Estates and Future Interests

Defeasible estates and future interests (e.g., property changing hands when sea level rises a given amount) have long been recognized by the common law of property. Nevertheless, how a court would treat a particular scheme depends on state property law. For example, the common law “Rule Against Perpetuities” would void TLC's interest in a deed that said “to buyer but if sea level rises one meter above the sea level of the 1980–2001 tidal epoch, then to TLC.”[387] But the rule would not void the interest in a deed that said “to buyer for so long as sea level is less than one meter above the 1980–2001 tidal epoch and then the property reverts back to the grantor,” [388] and the seller can donate or sell that possibility of reverter to TLC.  Anyone considering a rolling easement set up as a future interest in land should evaluate whether it would be subject to the Rule Against Perpetuities.

Rolling Easement Zoning Map
Figure 14. Statutory Reform of the Possibility of Reverter. Almost half of the coastal states have enacted statutes that limit the use of defeasible estates and future interests. Some states require the holder of a future interest to re-record her ownership or forfeit it. A few states limit the duration for some types of interest holders. In Maryland, a government agency can retain a possibility of reverter without a time limit.

During the 20th century, about one-third of the coastal states enacted statutes that limit the ability of property owners to create a possibility of reverter.[389] One state has abolished the general right to create a possibility of reverter.[390] The most common restrictions are requiring the interest holders to re-record their interests periodically,[391] limits on the duration of any newly created possibility of reverter,[392] and limits on the period of time for claiming the land after the event that triggers the reversion (see Figure 14).[393]

Many of these statutes, however, have exceptions if the possibility of reverter is held by the government or a charity.[394] Some statutes say that although the property will no longer revert when the owner breaches a condition, the court will enforce the restrictions.[395] New York also has an exception when the reversion is triggered by something other than how the land is used[396] (e.g., a rise in sea level), suggesting a desire to avoid forfeitures while respecting an owner's right to convey property for a natural duration.

Federal land agencies appear to have clearer legal authority to purchase and own rolling easements than other parties. Due to the Supremacy Clause of the U.S. Constitution, [397] federal agencies can buy particular interests in land as needed, whether or not they are recognized by state property law.[398] Ambulatory (Movable) Boundaries

Property boundaries usually have fixed surveyed location, but  not always. Land along the shore is the most common exception. Under the public trust doctrine, various states define the rolling boundary between private and public land as the dune vegetation line, the ordinary high water mark, the mean high tide line, or the mean low tide line.[399] If a private entity owns the tidelands, the high water mark can be the boundary between private parties. [400] And in at least one case, property lines have moved along with slow landslides.[401] Because judges (rather than people drafting land deeds) originally defined these boundaries as ambulatory,[402] the legal authority for these ambulatory boundaries has not been seriously in doubt.

Are landowners free to subdivide existing parcels (or convert existing fixed boundaries) using an ambulatory boundary? Because this has rarely been done, the answer is unclear, and what courts decide may vary from state to state (unless the legislature specifically authorizes an ambulatory boundary). Some issues to consider include: Affirmative Easements that Roll.

It is likely that adjacent landowners are free to negotiate a rolling affirmative easement in at least some coastal states. After Severance v. Patterson, the Texas General Land Office announced that it had suspended a beach nourishment project along West Galveston Island until beachfront owners conveyed rolling easements for beach access,[411] and the court implicitly recognized that a rolling easement can be a property interest under Texas Law.[412] Other courts that declined to find that an easement rolls have indicated that if there were evidence of intent to roll, then the easements under consideration would roll. [413] The best possible evidence of intent would be specific language in a deed.

In states where the law has not squarely addressed whether affirmative easements can roll, the traditional rules of easement law generally support the ability to negotiate a rolling easement:

A few rules have discouraged courts from finding that there is a rolling easement:

Those rules, however, were applied when courts faced questions about how to construe ambiguous easements, not about whether an easement could specifically be drafted to ensure that it rolls. A holder is not unilaterally changing the route, for example, if the terms of the easement provide for the route to migrate.

If an easement is needed for sole access to a home or business, a court will generally find an easement by necessity so that the owner can build a driveway.[420] Parties are also able to negotiate the particular route for an easement by necessity.[421] It follows that if a particular way will be repeatedly washed out, then the parties can negotiate how the way of necessity will change. Honoring the terms of express language in a deed is more reasonable than ordering an alternative that no one contemplated.

4.2.3 Authority to Obtain a Rolling Easement Private Entities

If a rolling easement is structured as a shoreline migration conservation easement, then the general restrictions for ownership of those instruments will apply. Qualified conservation organizations (as well as governments) have legal authority to hold conservation easements, while private citizens and for-profit corporations do not.[422] In most coastal states, anyone can hold a rolling easement structured as a defeasible estate, although statutes often provide charities with greater flexibility.[423] Any person or corporation can hold covenants and ordinary common law easements.[424] Local Government

A locality may come to possess a rolling easement through any of the following mechanisms:

  • Purchasing the easement from a willing seller,
  • Receiving a donated rolling easement from either the landowner or a qualified conservation organization,
  • Acquisition through eminent domain,
  • Exaction as a permit condition.

Local governments interested in obtaining a rolling easement would have to address two questions: (a) Is the interest sought recognized as property by state law, and (b) does the local government have authority to obtain such an interest in the manner chosen?

If the method of creating the rolling easement complies with a state's conservation easement enabling act, then the easement is property. The Uniform Conservation Easement Act[425] allows conservation easements to be created using any means by which other easements can be created. Eleven coastal states[426] have adopted the act, although some have altered that provision.[427] Among the 13 coastal states with other conservation easement enabling statutes, some explicitly allow easement creation by any manner,[428] some do not explicitly address how the easement is created,[429] and others limit it.[430] None of the statutes explicitly say whether a conservation easement can be created through exaction. Presumably an exaction would be a permissible mode of creation wherever the statute allows “any means.”But an exaction might not be permissible where the statute excludes eminent domain[431] or requires the easement to be created voluntarily.[432]

As with regulatory authority, the power of local governments to create conservation easements varies. In some states, the power of eminent domain is sharply limited, while in other states it is much broader. Similarly, some states provide localities with the authority for transferable development rights, while others do not. Localities may lack the power to exact an easement even if property law recognizes exacted conservation easements.

In states where the conservation enabling act does not allow conservation easements to be created involuntarily, it may be possible to obtain a rolling easement structured as a traditional future interest in land if eminent domain authority includes such interests. Moreover, in some cases a developer or other property owner may choose to sell or donate a rolling easement to obtain community support for a project. Some care may be necessary to ensure that the voluntary nature of the easement is well-established, lest it appear be an exaction in a state that does recognize exacted conservation easements as property.[433]

[376] Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987) (unless an exaction “serves the same governmental purpose as [would a] development ban, the building restriction is not a valid regulation of land use but 'an out-and-out plan of extortion.'”(quoting J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A.2d 12, 14–15 (1981))).

[377] Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) (“city must [ensure] that the required dedication is related both in nature and extent to the impact of the proposed development”).

[378] See Maryland Law Review, supra note 7, at 1359–1361 (arguing that even a dedication may have a sufficient nexus and rough proportionality to satisfy the constitutional tests for exactions); id. at 13391347 (arguing that setting aside land to ensure that access migrates inland if a seawall is built has both nexus and rough proportionality); and id at 1358 n.322 & 1360 (arguing that rolling easements have a substantial nexus and that neither rolling easements nor setbacks must meet the exactions test because there is no physical invasion).

[379] Exacted conservation easements are rare. J. O. Lippman, The Emergence of Exacted Conservation Easements, 84 Neb. L. Rev. 1043, 1102–1106 (2005). As a result, the Supreme Court has not had occasion to rule on whether they would be evaluated under the regulatory takings test (since there is no physical invasion) or the more stringent physical invasion test (since an interest in land is exacted). An affirmative beach-access rolling easement in return for a building permit would clearly be a physical invasion, and would bear some similarity to the facts in Nollan 483 U.S. at 838–842 (holding that requiring access along the dry beach in return for a building permit is a taking). Nevertheless, requiring that existing access will roll inland rather than be blocked by a new home as the shore erodes, would have a much tighter nexus with the building permit, than requiring immediate access to the dry beach as in Nollan. See Maryland Law Review, supra note 7 at 1343–45, 1358.

[380] Applicants generally challenge permit conditions before accepting a permit and proceeding with the development. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 828–829 (1987) (summarizing plaintiff's challenge of exaction before filing the takings claim). If that challenge fails, then they may proceed with a takings claim. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The statute of limitations for bringing such a claim varies. The Tucker Act authorizing governmental payment for constitutional takings, 28 U.S.C.  § 1491, has a six-year statute of limitations. 28 U.S.C.  §  2501. In states that lack a specific statute of limitations for takings claims, courts have held that the limitations period is the same as the period for similar injuries to real property. See, e.g., Frustuck v. City of Fairfax, 212 Cal. App. 2d 345, 374 (Court of Appeals, 1st Appellate Dist) (holding that the statute of limitations for constitutional takings is the 5-year statute of limitations for adverse possession rather than the 3-year period for trespass) and Baker v. Burbank-Glendale-Pasadena Airport Authority, 705 P.2d 866, 867–868 (Cal. 1985) (applying Frustuck v. City of Fairfax); Webb v. Greenwood County 229 S.C. 267, 273–74 (1956) (using the statute of limitations for damage or injury to real estate); and Klumpp v. Borough of Avalon, 202 N.J. 390, 397 (N.J. 2010) (adopting 6-year statute of limitations for injury to real estate because the 30-year period for adverse possession is too long to wait before bringing a takings case). See also 139 A.L.R. 1288 and 30 A.L.R. 1190 (citing cases with statutes of limitation for takings).

The statute of limitations period does not start until the claim arises. A regulatory takings claim generally cannot be considered until (1) all the administrative appeals have been exhausted to reach a final decision on the permit request, and (2) the plaintiff is unable to receive just compensation from the state government. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

[382] Land Trust Alliance, Amending Conservation Easements (2007)

[383] Id. at 32.

[384] Id. at 48.

[385] Id. at 48.

[386] See id. at 55 (suggesting a moderate risk for amendments that affect conservation purposes both positively and negatively).

[387] Hornbook on Property, supra note 203, at 177–179. A commonly cited summary of the Rule Against Perpetuities is: “No interest is good unless it must vest, if at all, not later than twenty-one years after the death of some life in being at the creation of the interest.”John Chipman Gray, Rule Against Perpetuities, 4th ed. 199 (1942). The objective of the rule was primarily to prevent landowners (particularly in their wills) from creating situations in which land may change hands in unpredictable ways based on how people used the land, whether a remote descendant had children, or other unpredictable factors. The Rule does not apply to future interests in which the land reverts back to an original owner; that owner's title is already vested. Reversion after a term of years is similarly viewed as vested because it is certain that the number of years will pass.

[388] Id. at 179.

[389] See supra notes 247–253 and accompanying text for a brief discussion of the law's longstanding discomfort with future interests in land.

[390] New Hampshire (H.B. 1270, Chapter 228 (2008)) completely eliminates the possibility of reverter except for charities and land trusts. California has converted all possibilities of reverter to the similar interest known as power of termination. Cal. Civ. Code §  885.020. See supra notes 246–252 and accompanying text (discussing power of termination).

[391] E.g. N.Y. Real Prop. §  345(4) (requiring an interest holder to re-register interest every 9 to 10 years or forfeit it); and Cal. Civ. Code §  885.030 (every 30 years).

[392] E.g., R.I. Code §  34-4-19 (20 years); Md. Code Ann., Real Prop. §  6-101 (30 years); N.C. Gen. Stat. §  41-32 (60 years); Florida Real and Personal Property Code §  689.18 (21 years); and Oregon Code §  105.770 (30 years). The statutes regulating possibility of reverter have no time limit for Massachusetts, New York, Virginia, and California. See Va. Code Ann. §  8.01-255.1; Mass. Code Regs., Ch. 260  §  31A; N.Y. Real Prop. §  345; and Cal. Civ. Code §  885.030, respectively.

[393] E.g., Va. Code Ann. §  8.01-255.1 (10 years).

[394] See, e.g., New Hampshire H.B. 1270 Chapter 228 (2008) (government and charities); R.I. Code §  34-4-20 (to the state, a railroad or utility; or for public, charitable or religious purposes); N.Y. Real Prop. §  345 (to governmental entity or for reversion on a lease of communication, transportation or transmission lines); Md. Code Ann. Real Prop. §  6-105 (exception if government reserves possibility of reverter); N.C. Gen. Stat. §  41–32 (owned by government or charity); Florida Real and Personal Property Code §  689.18 (governmental, educational, literary, scientific, religious, public utility, public transportation, charitable or nonprofit corporation); and Cal. Civ. Code §  885.030 (oil, gas, mineral extraction).

[395] N.Y. Real Prop. §  345(9)(a) (2010); and Florida Real and Personal Property Code §  689.18(7).

[396] N.Y. Real Prop. §  345(9)(b) (2010). Oregon Code 105.770 does not specifically exempt events unrelated to the land's use, but it only applies to “a special limitation or a condition subsequent, which restricts a fee simple estate in land,”which would not include a rise in sea level.

[397] U.S. Const. Art. VI  §  2.

[398] U.S. v. Albrecht, 364 F.Supp 1349 (D. N.D. 1973) aff'd 496 F.2d 908 (8th Circ. 1974) (federal government may obtain conservation easements not recognized by state property law).

[400]U.S. v. Milner, 583 F. 3d 1174, 1190 (9th Cir. 2009) (holding that where boundary between two private parties is mean high water, “[o]nce the shore has eroded so dramatically that the property owner's shore defense structures fix the ambulatory boundary, the upland owner cannot expect to permanently maintain the boundary there without paying damages to the tideland owner or working out an agreement with the tideland owner”).

[401] Linda Aurichio et al. v. Howard D. Menashe, A121073, (Court of Appeals of California, First Appellate District, Division Four, May 12, 2009) (not to be published in official reports) (adjusting boundary between private landowners to reflect migration of structures and landscaping on slowly sliding lands, based on the doctrine of relative hardship).

[402] See Sax, supra note 65, at 313–343.

[403] The regulations sometimes prohibit flag lots (i.e., a lot with very little frontage on a public road other than a driveway) unless there is no practical alternative. See, e.g., Prince George's County [Maryland] Zoning Code. §  24-138.01.

[404] E.g., Prince George's County Zoning Code   §  27-441(b) (allowing flag lots in a conservation subdivision).

[405] Charleston SC Subdivision Regulations §  8.7.4 (2010) (allowing flag lots “when the buildable area of a parcel is restricted due to the presence of a natural resource…”).

[406] Dona R. Christie. Of Beaches, Boundaries, and SOBS. 25 Journal of Land Use 35, 36 (2009).

[407] See, e.g., Scureman v. Judge, 747 A.2d 62, 68 (Del Court of Chancery, Sussex 1999), People v. William Kent Estate Co., 242 Cal. App. 2d 156 (1966), and Trs. of Internal Improvement Fund v. Ocean Hotels, Inc., 40 Fla. Supp. 26, 32 (1974).

[408] See e.g. Town of South Hero v. Wood, 898 A.2d 756, 762764 (Vermont) 2006 (distinguishing from case in Texas applying a statute that implicitly provided for a rolling easement).

[409] See e.g.  Scureman v. Judge, 747 A.2d 62, 68-69 (Del. Court of Chancery, Sussex 1999).

[410] See e.g. id. (declining to apply the rolling easement concept to a roadway because the road was on a dedicated parcel rather than an easement).

[411] Ian White, GLO says no to ‘static' easements on West End, Galveston County Daily News (November 26, 2010). “Because it is illegal for the state to spend taxpayers' money on private land, [the holding in Severance v. Patterson] throws into doubt the land office's legal position should it place any sand on an area of beach [that courts] eventually rules to belong to an individual homeowner.” Id. “Without a perpetual, rolling easement granted by the property owners, the project cannot move forward.”General Letter from Jerry Patterson, Commissioner, Texas General Land Office (December 2010) (sent to people who inquired about the suspension of planned beach nourishment in the aftermath of Severance v. Patterson).

[412] In Severance, the court stated that the public beach easement along West Galveston Island rolls as long as shore erosion is gradual (at least within a given parcel) which implies that an easement that rolls with a gradually retreating shore would be a recognized property interest. Because it would be more practical to negotiate, inspect, and enforce an easement that rolls with the shore regardless of the cause of shore erosion, it follows that a rolling easement would be a recognized property interest in Texas.

[413] See supra notes 85 and 261

[414] Emory Washburn, A Treatise on the American Law of Easements and Servitudes 239 (Little Brown and Company, Boston 1873)

[415] Id. at 258.

[416] Easements may be extinguished by an Act of God. Id. at 656. Once established, an easement may not be relocated by dominant tenant. Id.

[417] Id. at 683.

[418] Id. at 238.

[419] Id.

[420] Id. at 235–238.

[421] Id. at 237–238.

[423] See supra note 395 and accompanying text.

[424] The holder generally must own land nearby, however, for the easement to “run with the land”(i.e., bind subsequent owners of the land). See supra notes 209–213 and accompanying text (easements) and  § (covenants).

[425] National Conference of Commissioners on Uniform State Laws (1982).

[426] Ala. Code §  35-18-1 et seq (2010); Alaska Stat. §  34.17.010 et seq. (2010); D.C. Code  §  42-201 et seq. (2010); Ga. Code Ann. §  44-10-3 (2009); La. Rev. Stat. Ann. §  9-1271 et seq. (2010); 33 Me. Rev. Stat. §  476 et seq. (2010); Miss. Code Ann. of 1972 §  89-19-1 et seq. (2009); Or. Rev. Stat. Ann. §  217.715 et seq. (2010); S.C. Code Ann. §  27-8-10 et seq. (2009); Tex. Code Ann. §  183.002; and Va. Code Ann. §  10.1-1009 et seq. (2010).

[427]The Georgia Uniform Conservation Easement Act adds “except that a conservation easement may not be created or expanded by the exercise of the power of eminent domain.”Ga. Code Ann. §  44-10-3. The Virginia code adds: “A holder may acquire a conservation easement by gift, purchase, devise or bequest.”Va. Code Ann.  §  10.1-1010.

[428]E.g., N.C. Gen. Stat. §  121-37 and Delaware Conservation Code §  6902. New Jersey mentions condemnation explicitly: “A conservation restriction [can]…be acquired in the same manner as other interest in land [and] may be acquired by gift, purchase or devise and, in the case of the State or local unit, by condemnation.”N.J. Stat. Ann. §  13:8B-1.

[429] E.g., Md. Code Ann., Real Prop. §  2-118; Florida Real and Personal Property Code §  704.06.

[430] E.g., Cal. Civ. Code §  815.2(a). A conservation easement is an interest in real property voluntarily created and freely transferable in whole or in part for the purposes stated in Section 815.1 by any lawful method for the transfer of interests in real property in this state.Florida Real and Personal Property Code §  704.06 excludes acquisition by eminent domain.

[431] A court may have to investigate the legislative intent. If the intent of precluding eminent domain is to prevent involuntary creation of conservation easements, then exacted conservation easements are not permissible unless they are viewed as voluntary. If the intent is to control government expenditures, then the restriction does not prevent an exacted conservation easement.

[432] The Supreme Court cases on exactions have treated them as involuntary and hence, as potential takings. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987) (the “permit condition ... is ‘an out-and-out plan of extortion.'” (quoting J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A.2d 12, 14–15 (1981))). Although that opinion is binding on whether an exaction is a taking under the U.S. Constitution, it does not control how a state court interprets the word “voluntary”in an easement enabling statute.

[433] That concern can be avoided if the developer conveys the rolling easement to a land trust.

Go Back 4.1 Statutory Power and the Takings  Question
Chapter 5: Pro's and Con's of Rolling Easements Go Forward

This page contains a section from: James G. Titus, Rolling Easements, U.S. Environmental Protection Agency. EPA‑430‑R‑11‑001 (2011). The report was originally published by EPA's Climate Ready Estuary Program in June 2011. The full report (PDF, 176 pp., 7 MB) is also available from the EPA web site.

For additional reports focused on the implications of rising sea level, go to Sea Level Rise Reports.

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